Dangers of Posting on Facebook

By Bonny Rafel

Litigants should beware of posting information on social networking sites such as Facebook and MySpace. Not only can your public pages be viewed and possibly used against you in court, judges are now sometimes ordering litigants to reveal their usernames and passwords to opposing parties in litigation.

A Pennsylvania court in McMillen v. Hummingbird Speedway, Inc. recently did just that in a personal injury case. After the defendants reviewed the public portions of the plaintiff’s Facebook account, discovering comments regarding his trip when the alleged injury in question took place, they asked the court to compel production of his passwords to these accounts. The court ordered the plaintiff to produce his usernames and passwords, finding that no privilege exists for information posted on social networking sites.

In November 2011, another Pennsylvania court ordered a plaintiff in a personal injury auto accident case to disclose her Facebook password. Largent v. Reed. The defendant sought this information, claiming that the plaintiff posted photographs and status updates showing that she was not permanently disabled, as she claimed. The court found that the Stored Communications Act, which prevents the government from compelling Internet Service Providers and Facebook from providing passwords, does not stop the court from compelling the plaintiff in a civil action from releasing her password. The order was entered despite the fact that exchanging passwords violates Facebook’s terms of service. The court concluded that Facebook posts are not “truly private” and producing her password will result in little harm or burden. Also in November, a Connecticut court ordered that a divorcing couple exchange their Facebook and dating website passwords. Forbes, November 7, 2011.

There are several ways to avoid these potential issues from arising in litigation. If you feel that you cannot give up your social media activity, you absolutely must be responsible in what you post and you must maintain the proper controls to limit access. For example, Facebook, as well as other social media, offers privacy settings which can allow one to be proactive. On Facebook, you can customize your audience by selecting from the audience selector tool. You need to remember that the people you choose to share your information with can also share that same information with others, so choose wisely. You may also control how you connect with people you know by selecting “custom” or “friends” rather than allowing “everyone” to connect to you. Likewise, any information shared as a result of downloading games and apps can be controlled through an app privacy control. In this way you can choose the people with whom you are most comfortable sharing information.

Tags are a great way to share photos but it is best to enable a profile review or tag review in your default privacy settings because it notifies you when you are tagged and allows you to approve or deny the request.

If you are concerned about information previously posted, you can convert anything that was posted to the public to a more restricted audience.

By following these simple guidelines, you can certainly limit access to your social media account. However, you must always be aware that what is posted on the internet stays there, and that even a secured account is not fool-proof.

We at Bonny G. Rafel counsel our clients to be careful about their presence online in order to protect their rights under their insurance policies.